Increasing the community spouse income allowance through the judicial process: what standard applies?

• Author: Boone, Nicola Jaye

The community spouse of a Medicaid recipient, specifically a recipient of the Institutionalized Care Benefit Program, is entitled to a minimum monthly maintenance needs allowance of $1,295 per month currently. Under Department of Health and Rehabilitative Services guidelines, the maximum community spouse income allowance, comprised of the minimum monthly maintenance needs allowance (MMMNA) and an excess shelter award, cannot exceed $1,919 per month. Notwithstanding, the law does provide that either spouse may appeal the amount of the income allowance through the fair hearing process,(1) and the allowance can be adjusted if the couple presents convincing proof that exceptional circumstances resulting in significant financial duress exist. 42 USC [sections] 1396r-5(e)(2)(B) (1994); Fla. Admin. Code r. 10C-8.0183(10). One route, therefore, to increase the community spouse income allowance is to utilize the administrative fair hearing process by demonstrating "exceptional circumstances" which warrant the increase.(2)

The other method for increasing the community spouse income allowance is to seek a judicial order of support. Federal law provides: "If a court has entered an order against an institutionalized spouse for monthly income for the support of the community spouse, the community spouse monthly income allowance for the spouse shall be not less than the amount of the monthly income so ordered." 42 USC [sections] 1396(r)-5(d)(5)(1994). Florida has codified this provision in its administrative code by simply stating "the community spouse income allowance cannot be less than any court-ordered support." Fla. Admin. Code r. 10C-8.0183(9). And the, applicable HRS regulation states "if there is court-ordered support against an institutionalized spouse (for monthly support income for the community spouse), the community spouse's monthly income allowance cannot be less than the amount ordered. HRSM 165-22U 2605.35.15.10 (April 1, 1995). Consequently, it is very clear that courts' like administrative agencies, have the authority to set a community spouse income allowance in excess of the $1,919 per month. However, there is no legislative provision indicating what factors should be considered by the court when reviewing a petition for monthly support from the community spouse.

New York courts have recently addressed this issue. In Gombrecht v. Sabol, 86 N.Y.2d 47 (1995), the community spouse petitioned the court for an increase in the monthly income allowance. The hearing examiner awarded the community spouse income of $3,339.26 per month...